EXHIBIT 10.10
EXECUTION
CONSULTING AGREEMENT
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THIS AGREEMENT is entered into as of June 13, 2000, by and between
Xxxxxxx X. XxXxxxxxx ("Consultant") and Southwestern Life Holdings, Inc., a
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Delaware corporation (the "Company"). The Company and Consultant are sometimes
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collectively referred to herein as the "Parties" and individually as a "Party".
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In consideration of the mutual covenants and agreements set forth
herein, the Parties agree as follows:
1. Consulting Services. The Company hereby engages Consultant as an
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independent contractor, and not as an employee, to render consulting
services to the Company as hereinafter provided, and Consultant hereby
accepts such engagement, for a period commencing on the date hereof and
terminating on the first anniversary of the date hereof (the "Consulting
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Period"). Consultant shall not have any authority to bind or act on behalf
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of the Company. During the Consulting Period, Consultant shall render such
consulting services to the Company in connection with the Company's
business as the Company from time to time requests.
2. Compensation; Reimbursement. In consideration of Consultant's
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consulting services set forth in Section 1 above, the Company shall issue
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and grant to Consultant, and Consultant will receive 24,000 shares of the
Company's common stock, par value $0.01 per share (the "Common Stock").
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Consultant shall not be entitled any fringe benefits or perquisites from
the Company. The Company shall reimburse Consultant for all reasonable
expenses incurred by him in the course of performing his duties under this
Agreement which are consistent with the Company's policies in effect from
time to time with respect to travel, entertainment and other business
expenses, subject to the Company's requirements with respect to reporting
and documentation of such expenses.
3. Confidential Information. Consultant acknowledges that the
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information, observations and data relating to the business of the Company
and its subsidiaries which Consultant has obtained as an employee, officer,
director and stockholder of the Company and its subsidiaries or shall
obtain during the course of his association with the Company and its
subsidiaries and his performance under this Agreement are the property of
the Company and its subsidiaries. Consultant agrees that he shall not use
for his own purposes or disclose to any third party any of such
information, observations or data without the prior written consent of the
Board of Directors of the Company (the "Board"), unless and to the extent
that the aforementioned matters become generally known to and available for
use by the public other than as a result of Consultant's acts or omissions.
Consultant shall deliver to the Company at the end of the Consulting
Period, or at any other time the Company may request,
all memoranda, notes, plans, records, reports, computer tapes, printouts
and software and other documentation (and copies thereof) relating to the
business of the Company and its subsidiaries which Consultant may then
possess or have under his control.
4. Inventions and Patents. Consultant acknowledges that all inventions,
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innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether
patentable or not) which relate to the actual or anticipated business,
research and development or existing or future products or services of the
Company and its subsidiaries and which are conceived, developed or made by
him during the Consulting Period ("Work Product") belong to the Company.
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Consultant shall promptly disclose such Work Product to the Company and
perform all actions reasonably requested by the Company (whether during or
after the Consulting Period) to establish and confirm such ownership
(including, without limitation, assignments, powers of attorney and other
instruments).
5. Tax Returns. Consultant shall file all tax returns and reports
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required to be filed by him on the basis that Consultant is an independent
contractor, rather than an employee, as defined in Treasury Regulation
(S)31.3121(d)-1(c)(2), and Consultant shall indemnify the Company for the
amount of any employment taxes paid by the Company as the result of
Consultant not withholding employment taxes from the Consulting Payment.
6. Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the Company and its affiliates, successors and
assigns and shall be binding upon and inure to the benefit of Consultant
and his legal representatives and assigns; provided that in no event shall
Consultant's obligations to perform future services for the Company be
delegated or transferred by Consultant without the prior written consent of
the Company (which consent may be withheld in its sole discretion). The
Company may assign or transfer its rights hereunder to any of its
affiliates or to a successor corporation in the event of merger,
consolidation or transfer or sale of all or substantially all of the assets
of the Company.
7. Modification of Waiver. No amendment, modification or waiver of this
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Agreement shall be binding or effective for any purpose unless it is made
in a writing signed by the Party against who enforcement of such amendment,
modification or waiver is sought. No course of dealing between the Parties
to this Agreement shall be deemed to affect or to modify, amend or
discharge any provision or term of this Agreement. No delay on the part of
the Company or Consultant in the exercise of any of their respective rights
or remedies shall operate as a waiver thereof, and no single or partial
exercise by the Company or Consultant of any such right or remedy shall
preclude other or further exercises thereof. A waiver of right or remedy
on any one occasion shall not be construed as a bar to or waiver of any
such right or remedy on any other occasion.
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8. Governing Law. All issues and questions concerning the construction,
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validity, enforcement and interpretation of this Agreement and the exhibits
and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State
of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
9. Severability. Whenever possible each provision and term of this
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Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision or term of this Agreement shall
be held to be prohibited by or invalid under such applicable law, then such
provision or term shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term or the remaining
provisions or terms of this Agreement.
10. No Strict Construction. The language used in this Agreement shall be
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deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against
any Party.
11. Consultant's Representations. Consultant represents and warrants to
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the Company that (i) his execution, delivery and performance of this
Agreement does not and shall not conflict with, or result in the breach of
or violation of, any other agreement, instrument, order, judgment or decree
to which he is a party or by which he is bound, (ii) he is not a party to
or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity, (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of his, enforceable in accordance
with its terms, (iv) the Common Stock to be acquired by Consultant pursuant
to this Agreement shall be acquired for his own account and not with a view
to, or intention of, distribution thereof in violation of the 1933 Act, or
any applicable state securities laws, and the Common Stock shall not be
disposed of in contravention of the 1933 Act or any applicable state
securities laws, (v) Consultant is sophisticated in financial matters and
is able to evaluate the risks and benefits of the investment in the Common
Stock, and (vi) Consultant is able to bear the economic risk of its
investment in the Common Stock for an indefinite period of time because the
Common Stock have not been registered under the 1933 Act and, therefore,
cannot be sold unless subsequently registered under the 1933 Act or an
exemption from such registration is available.
12. Notice. Any notice required or permitted hereunder shall be given in
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writing and shall be deemed effectively given upon personal delivery or
upon deposit in the United States Post Office mail, postage prepaid,
addressed to the other Party hereto at his or its address shown below:
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If to the Company:
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Southwestern Life Holdings, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
If to Consultant:
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Xxxxxxx X. XxXxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
or at such other address as such Party may designate by ten days advance written
notice to the other Party.
13. Captions. The captions used in this Agreement are for convenience of
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reference only and do not constitute a part of this Agreement and shall not
be deemed to limit, characterize or in any way affect any provision of this
Agreement, and all provisions of this Agreement shall be enforced and
construed as if no caption had been used in this Agreement.
14. Counterparts. This Agreement may be executed in counterparts, any one
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of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
SOUTHWESTERN LIFE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: President and Chief Operating Officer
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/s/ Xxxxxxx X XxXxxxxxx
__________________________________________
Xxxxxxx X. XxXxxxxxx
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